Successfully Developing A Case Theme

SUCCESSFULLY DEVELOPING A CASE THEME

By
RONALD B. ROSEN, ESQ.

CHAMLIN, ROSEN & ULIANO

WEST LONG BRANCH, NJ 07764

A THEME IS DEFINED BY DICTIONARY SOURCES AS

1. A TOPIC OF DISCOURSE OR DISCUSSION , OR
2. AN UNDERLYING OR ESSENTIAL SUBJECT OF ARTISTIC REPRESENTATION, OR
3. AN IDEA, POINT OF VIEW, OR PERCEPTION EMBODIED AND EXPANDED UPON IN A WORK OF ART.

A THEME FOR A MATRIMONIAL CASE SHOULD FOLLOW THE THIRD DEFINITION ABOVE. IT SHOULD BE AN IDEA, IT SHOULD BE A POINT OF VIEW, AND IT SHOULD BE YOUR PERCEPTION, WHICH YOU EMBODY AND EXPAND UPON IN YOUR “WORK OF ART”, OR THE CASE THAT YOU ARE PRESENTING.

A THEME IS NO MORE THAN THE USE OF CERTAIN CLICHES USED IN

MATRIMONIAL LAW, THAT YOU WILL

CONTINUE USING THROUGHOUT THE CASE.

A THEME SHOULD BE SELECTED AT THE BEGINNING OF THE CASE IN ORDER TO KEEP YOU, THE ATTORNEY, FOCUSED ON YOUR CASE AND WHERE YOU ARE GOING. IT IS THEN TO BE REPEATED BY YOU THROUGHOUT THE CASE, WITH THE HOPE THAT THE ADVERSARY WILL BELIEVE IT, AND ULTIMATELY WITH THE HOPE THAT THE TRIER OF THE FACTS WILL BELIEVE IT AS WELL.

OUR MATRIMONIAL SYSTEM, AT LEAST IN MONMOUTH COUNTY, IS ATTEMPTING TO EMPLOY THE ONE CASE, ONE JUDGE SCENARIO. YOUR CASE SHOULD BE ASSIGNED A JUDGE AS SOON AS THE COMPLAINT IS FILED AND HE SHOULD BE HANDLING ALL OF THE MOTIONS, ALL OF THE ORDERS TO SHOW CAUSE, SHOULD THERE BE ANY, AND ULTIMATELY SETTLEMENT CONFERENCES AND THE TRIAL ITSELF. IF YOU CONTINUE YOUR THEME THROUGHOUT THE CASE, AND IT IS DONE EFFECTIVELY, IT WILL BE OF BENEFIT TO YOU.

THERE IS NOTHING WRONG WITH SAYING TO THE JUDGE,
“JUDGE, YOU REMEMBER, THIS IS THE CASE WHERE…”.
SOME THEMES, ENCOUNTERED BY ALL OF YOU IN THE CASES THAT YOU HANDLE ARE AS FOLLOWS:

THIS IS THE CASE WHERE:

A. HE LEFT THE WIFE AND THREE KIDS FOR HIS HIGH SCHOOL SWEETHEART; OR

B. SHE LEAVES THE WINDOW OPEN AND THE HEAT ON FULL BLAST; OR

C. THERE IS A MILLION DOLLAR HOUSE AND A TAX RETURN WITH $38,000.00 OF ANNUAL INCOME REPORTED; OR

D. HE USES 500 PIZZA BOXES A WEEK, WHY DOES HE ONLY SELL 300 PIZZAS? OR

E. SHE REFUSES TO WORK AND HELP WITH THE FINANCES; OR

F. THE PENDENTE LITE ORDER BY THE FIRST JUDGE IS WAY OUT OF LINE.

CREDIBILITY IS ALSO A THEME, SUCH AS “JUDGE WE CAN’T TRUST ANYTHING HE SAYS IN HIS CERTIFICATIONS. YOU REMEMBER WHEN HE SAID…..”.

OTHER THEMES COULD INCLUDE THE FOLLOWING:

1. HE DOESN’T CARE ANYMORE;
2. HE HAS A NEW LIFE NOW;
3. HE HAS CHANGED HIS LIFE STYLE, WHY SHOULD HE BE ABLE TO CHANGE OURS;
4. HE IS STEALING FROM THE FAMILY;
5. HE IS STEALING FROM HIS CHILDREN;
6. HE IS STEALING FROM THE GOVERNMENT;
7. HE HAS DECIDED TO RELAX AND NOT WORK AS MUCH;
8. HE HAS STOPPED WORKING OVERTIME;
9. NOW HE IS DEPOSITING CASH; WHY NOT BEFORE;
10. WHERE IS THE MONEY HE HAS EARNED ALL OF THESE MONTHS;
11. HE IS SPENDING MORE ON HIMSELF THAN HIS FAMILY OR WHAT USED TO BE HIS FAMILY;

NATURALLY, WHEN YOU REPRESENT THE HUSBAND, THERE ARE THEMES THAT CAN BE EMPLOYED ON HIS BEHALF AS WELL, I.E.:

1. SHE IS SPENDING WITHOUT REGARD TO HIS INCOME;
2. SHE IS SPENDING MORE THAN SHE EVER DID;
3. SHE IS NOT GOING TO SETTLE THIS CASE WITH A HIGH PENDENTE LITE ORDER IN PLACE;
4. SHE MUST GET A JOB;
5. SHE CAN’T HAVE THE SAME LIFESTYLE AS WHEN THE TWO WERE TOGETHER;COMMON THEMES APPLICABLE TO BOTH PARTIES:
6. THERE IS NOT ENOUGH MONEY TO GO AROUND;
7. WE MUST BOTH TIGHTEN OUR BELTS;
8. SHE OR HE IS UNDEREMPLOYED;
9. HE/SHE COULD WORK, THE KIDS ARE OLD ENOUGH;

THE ABOVE ILLUSTRATIONS ARE BY NO MEANS EXHAUSTIVE, AND BY NO MEANS THE BEST OF ALL POSSIBLE THEMES. IN AN ARTICLE WRITTEN BY JOHN TROMBADORE, ESQ., A FELLOW OF THE AMERICAN ACADEMY OF MATRIMONIAL LAWYERS, AS WELL AS THE RECENT RECIPIENT OF THE TISCHLER AWARD, HE LIKENED THEMES TO FAIRYTALES, REFERRING TO THE GOOD GUY AS ”
SNOW WHITE ” AND ”
CINDERELLA ” AND THE BAD GUY AS THE ”
WICKED STEPMOTHER “; OR THE THEMES THAT APPLY TO CHILDREN IN PERIL, I.E.; ”
HANSEL AND GRETEL “, ”
LITTLE RED RIDING HOOD “, ”
GOLDILOCKS AND THE THREE BEARS “. HIS THIRD THEME WAS THE COMMON MAN AS THE HERO AND REFERENCED ”
JACK AND THE BEANSTALK ” AND THE ”
THE LITTLE TAILOR “.

WITHOUT GIVING THE PEOPLE NAMES, AS DID JOHN TROMBADORE IN HIS ARTICLE, YOU CAN USE THE SAME THEMES TO HELP ORGANIZE YOUR CASE AND HELP IN THE PRESENTATION OF THE TRIAL EVIDENCE AS WELL AS THE CLOSING ARGUMENT.

THE THEME IS ONLY DEVELOPED THROUGH REPETITION AND CONSISTENCY. A THEME SHOULD RUN THROUGH THE ENTIRE CASE LIKE THE BACKBONE OF A BODY.

A THEME IS THE MESSAGE THAT YOU ARE TRYING TO CONVEY TO THE COURT. IT IS YOUR ATTEMPT TO GET THE JUDGE TO BE ASKING HIM OR HERSELF THE SAME QUESTIONS THAT YOU ARE ASKING. WHERE IS THE INCOME THAT HE WAS EARNING THAT USED TO BE AVAILABLE TO THE FAMILY THAT IS NO LONGER AVAILABLE TO THE FAMILY? WHERE IS ALL OF THE INCOME THAT HE DID EARN THAT NO LONGER APPEARS IN THE SAVINGS ACCOUNT?

AS AN EXAMPLE , IF IN YOUR COMPLAINT THE WIFE ALLEGES THAT THE HUSBAND HAS NOT BEEN BRINGING HOME ALL OF THE MONEY THAT HE EARNS, AND SHE STATES THAT SHE ASKED HIM WHERE IT WAS GOING AND HE REFUSED TO ANSWER STATING THAT IT WAS NONE OF HER BUSINESS, THAT PORTION OF THE COMPLAINT SHOULD BE CARRIED THROUGH. IN THE MOTION AND CERTIFICATION THAT FOLLOWS FOR PENDENTE LITE RELIEF, THAT THEME SHOULD BE RE-EMPLOYED. THE QUESTIONS AGAIN SHOULD BE ASKED, “WHERE IS THE MONEY THAT HE IS EARNING? IF IT IS NOT BEING SPENT ON THE HOUSE, WHERE IS IT?”

A REQUEST FOR DISCOVERY SHOULD BE PUT IN THE MOTION FOR PENDENTE LITE RELIEF ASKING FOR AN ACCOUNTING OF THE INCOME, AND AN ACCOUNTING OF THE DEPOSITS. WHERE IS ALL OF THE MONEY THAT HE DOES EARN. REQUEST DISCOVERY OF HIS CHECKBOOK AND THE EXPENSES AS WELL AS AN ACCOUNTING OF HIS INCOME.

ON ENFORCEMENT MOTIONS IN THE SAME PARTICULAR CASE, BRING IT UP AGAIN. POUND THE THEME HOME IN SUCH A FASHION THAT THE JUDGE WILL BEGIN TO ASK – “WHERE IS THE MONEY”? WITH RESPECT TO THE TRIAL, IF IT GOES THAT FAR, OR SETTLEMENT CONFERENCES OR THE EARLY SETTLEMENT PANEL, THAT THEME SHOULD BE CARRIED THROUGH AGAIN – WHERE IS ALL OF THE MONEY? THE PURPOSE FOR THAT PARTICULAR EXAMPLE, IS EITHER TO FIND MONEY THAT HAS BEEN PUT AWAY OR TO FIND EXCESSIVE SPENDING BY THE HUSBAND, OR TO SHOW THAT HE IS HIDING MONEY IN SOME FASHION OR JUST TO SHOW THAT HE IS NOT PROVIDING FOR THE FAMILY THE SAME AS WAS THE STATUS QUO PRIOR TO THE COMPLAINT BEING FILED.

WITH RESPECT TO THE THEMES SET FORTH ABOVE, IT MUST BE YOUR FUNCTION TO MAKE YOUR CLIENT AS CLEAN, AS HONEST AND AS DESERVING A PERSON AS YOU CAN WITH THE FACTS THAT ARE PRESENTED TO YOU.

IT IS YOUR JOB TO CONVINCE THE COURT THAT THE HUSBAND CAN AFFORD TO PAY MORE IN ALIMONY OR CHILD SUPPORT THAN IS BEING OFFERED. IF REPRESENTING THE HUSBAND, THE EFFORT SHOULD BE TO CONVINCE THE COURT THAT THE AMOUNT BEING REQUESTED BY THE WIFE IS UNREASONABLE OR UNDULY BURDENSOME OR UNFAIR.

THE THEME OF THE CASE HELPS YOU DO THAT. IF, IN FACT, USING SOME OF THE EXAMPLES SUGGESTED, THE HUSBAND LEFT HIS WIFE AND THREE CHILDREN FOR HIS HIGH SCHOOL SWEETHEART, THAT IS A THEME THAT WILL BE VERY EFFECTIVE IN YOUR ARGUMENTS WITH REGARD TO ALIMONY AND CHILD SUPPORT. ALTHOUGH FAULT IS NOT A FACTOR TO BE CONSIDERED IN EQUITABLE DISTRIBUTION AND PERHAPS NOT IN CHILD SUPPORT EITHER, IT IS STILL A FACTOR TO BE CONSIDERED IN ALIMONY AND IT IS STILL A FACTOR WHICH I THINK CARRIES SOME WEIGHT WITH ANY REASONABLY THINKING HUMAN BEING, EVEN A JUDGE. IT CANNOT BE SAID THAT A JUDGE OR A COURT IS GOING TO TOTALLY IGNORE THAT SCENARIO, BECAUSE THAT IS NOT HUMAN NATURE.

A CATCHY PHRASE, AN INCIDENT THAT OCCURRED THAT IS PERHAPS HUMOROUS, THE USE OF “500 PIZZA BOXES”, ARE ALL MEANS BY WHICH TO HAVE A THEME PRESENTED AND WORK TO YOUR BENEFIT.

IN CLOSING, THERE IS ONLY ONE CAVEAT, AND THAT IS TO BE WARY OF ONE OTHER CLICHÉ. “DON’T BEAT A DEAD HORSE”. YOU HAVE TO BE CAREFUL NOT TO OFFEND BY THE CONTINUED USE OF, OR THE OVER USE OF A THEME. THE DIFFERENCE BETWEEN A GOOD TRIAL ATTORNEY AND AN ORDINARY TRIAL ATTORNEY IS ONE WHO KNOWS WHEN THE HORSE IS DEAD AND WHEN TO STOP BEATING.